Judgment No. 3268
1. The decision of 27 July 2010 and the complainant’s staff report for the period from 1 January 2004 to 31 December 2005 are set aside.
2. The EPO shall proceed as indicated under 14.
3. It shall pay the complainant damages in the amount of 4,000 euros as stated under 15.
4. It shall also pay him 1,000 euros in costs.
The complainant successfully impugns the establishment of a staff report containing negative comments.
complaint allowed; decision quashed; performance report; rating; limits
Considerations 9, 12 and 13
"Assessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the marks given to the employee have been worked out in full conformity with the rules, but it cannot substitute its own opinion for these bodies’ assessment of the qualities, performance and conduct of the person concerned. The Tribunal will therefore interfere in this field only if the decision was taken without authority, if it was based on an error of law or fact, a material fact was overlooked, or a plainly wrong conclusion was drawn from the facts, or if it was taken in breach of a rule of form or procedure, or if there was abuse of authority (see Judgments 2834, under 7, and 3006, under 7). This limitation on the Tribunal’s power of review naturally applies to both the mark given in a staff report and the comments accompanying that mark in the report."
"The restraint which the Tribunal must exercise [...] does not mean that it can disregard the fact that the comment accompanying the complainant’s productivity rating considerably detracts from the marking “good” and that the countersigning officer’s comments underscore that effect. [...] It follows from the foregoing that the [...] disputed staff report must be set aside."
rating; supervisor; discretion; performance evaluation
It will be incumbent upon the EPO to draw up a new staff report in which the phrase “within the lower limit of ‘good’” in section I(2)(i) of the report and the two sentences after the word “Agreed” in section VII of the report are deleted – and not replaced with equivalent terms.